Questions of Law

There are many important legal issues surrounding abortion, and a great deal of misinformation among the public about such issues as what kinds of abortions are allowed by law and what pro-lifers can do to peacefully oppose abortion.

The questions and answers below deal not only with court decisions and laws that outline the conditions under which abortions are performed, but also with the legality of various forms of pro-life activism, and what pro-life activists can do when their rights are restricted by other citizens or the police.

How did Abortion Become Legal in the United States?

On January 22, 1973 the United States Supreme Court rulings Roe v. Wade and Doe v. Bolton struck down all existing laws restricting abortion finding that they were unconstitutional. This decision has been constantly contested since. See below for details on these two cases.

What did Roe v. Wade Decide?

In the 1973 Roe v. Wade decision, the Supreme Court of the United States ruled 7-2 that the Fourteenth Amendment of the U.S. Constitution, which protects the rights to life, liberty and property, entailed a “right to privacy” that included the right for a woman to procure an abortion up until “the point at which the fetus becomes ‘viable’.”

Roe v. Wade effectively overturned all existing state laws against abortion. Roe v. Wade did allow for some limitations on when abortions could be obtained. However, these limitations were effectively nullified by the court’s decision in Roe’s companion case, Doe v. Bolton, outlined below.

Source: Roe v. Wade, 410 U.S. 113 (1973).

What did Doe v. Bolton Decide?

Doe v. Bolton challenged a Georgia law which required the approval of multiple physicians, under limited circumstances, for an abortion to take place. The ruling overturned limits on obtaining abortions such as restrictions on what point during a pregnancy an abortion can be obtained, whether one can cross state lines to obtain an abortion and whether a doctor has to approve an abortion.

In Doe v. Bolton, the court ruled that abortion for “the health of the mother” could not be restricted, while adopting a very broad definition of what “may relate to health”, including “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient”. This effectively made abortion legal through all nine months of pregnancy for almost any reason.

Source: Doe v. Bolton, 410 U.S. 179 (1973).

What was the Legal Status of Abortion in the Unites States Before Roe v. Wade?

Dating back to British common law, the historical foundation of American law, abortion was illegal after “quickening”, when the mother could feel the baby begin to move. As early as 1871 the American Medical Association condemned abortion as “wholesale destruction of unborn infants.” By 1900, abortion was illegal throughout the United States through all nine months of pregnancy.

Throughout the 19th and 20th centuries, individual states regulated abortion, with penalties typically imposed on the abortionists. In the 1960’s, in the midst of the sexual revolution and more widespread use of contraception, some sociologists and legal scholars proposed that abortion laws be liberalized to allow exceptions for rape, incest and other reasons never before considered to justify abortion.

Colorado legalized abortion for rape, incest, significant fetal anomaly or threat to the mother’s health in 1967. In 1970, New York passed the country’s most permissive abortion law, allowing abortion up to 24 weeks for any reason. By the time of Roe v. Wade, thirteen states had passed laws similar to Colorado’s. Most states allowed abortion only in cases where a woman’s life was said to be in danger.

All of these state laws on abortion were rendered moot by the Supreme Court’s Roe v. Wade and Doe v. Bolton decisions in 1973.

Sources: Dorland. 1965. Dorland’s Illustrated Medical Dictionary 1689. St. Louis

MO: W.B. Saunders Co.

Lewis, J. and Shimabukuro, Jon O. Abortion Law Development: A Brief Overview.

Quay, Eugene. 1961. Justifiable Abortion: Medical and Legal Foundations. Family Life Bureau, National Catholic Welfare Conference.

Who was Jane Roe and Where is She Now?

The real name of the woman anonymously named “Jane Roe” in Roe v. Wade is Norma McCorvey. In her lawsuit, she claimed to have become pregnant as the result of rape and argued that she should therefore be allowed to have an abortion, despite the laws against abortion in her home state of Texas. She gave birth to the child and placed her for adoption before the 1973 ruling legalized abortion. McCorvey worked in the pro-choice movement and for an abortion clinic for several years thereafter.

After publicly identifying herself as Jane Roe, Mc-Corvey became friends with Rev. Flip Benham and other pro-lifers. Her book, Won By Love, recounts how the compassion pro-lifers showed to her brought her into the pro-life movement. McCorvey has admitted to the many fabrications in the Roe v. Wade case, including her claim to have been raped, and is now an outspoken pro-life advocate.  In 2005 she asked the United States Supreme Court to overturn Roe v. Wade on the basis of new evidence showing that abortion hurts women. She died in 2017.

Sources: McCorvey, Norma. 1998. Won By Love. Nashville: Thomas Nelson, Inc.

Who was Mary Doe and Where is She Now?

The “Mary Doe” in Doe v. Bolton was Sandra Cano. Cano had gone to a free legal clinic seeking help getting a divorce and retrieving her children from foster care. She happened to be pregnant at the time. Without her realizing what they were doing, her lawyers sidelined the issues she wanted help with and instead filed a lawsuit stating that she wanted an abortion. When Cano’s mother and lawyer arranged for her to have an abortion, she fled the state.

Unfortunately Cano did not understand the legal jargon being used in her case. She had no idea that her lawyers were fighting for abortion rights, not for her divorce. Cano has always been and continues to be opposed to abortion. Cano even filed a motion for the Supreme Court to rehear and overturn her case, but in 2006 the Court refused. Her story is chronicled in the book Supreme Deception. Ms. Cano died in 2014, and her last wish was that people would “pray for the end of abortion in America and pray for her family.”

Source: Fletcher Lash, Sybil. 2002. Supreme Deception: How an Activist Attorney Manipulated the U.S. Supreme Court and Gave Birth To Partial Birth Abortions. Lawrenceville: Sentinel Productions.

What Would Happen if Roe v. Wade were Overturned?

If the Supreme Court were to overturn Roe v. Wade, it would not mean the end of legal abortion in the United States. Rather, the issue would return to the states, where it was before Roe v. Wade. State legislatures would then have the power to determine the legal status of abortion in their individual states.

Several states have already enacted laws intended to go into effect if Roe v. Wade were overturned.  Some of these laws would ban most abortions, while others would maintain the status quo of broadly legal abortion under Roe. Read more about what will happen if Roe is overturned.

Are the States Permitted to Place Restrictions on Abortions?

Since the Supreme Court’s Roe v. Wade and Doe v. Bolton rulings in 1973 (see above), most states have sought to impose restrictions on abortion. As these laws have been enacted, Planned Parenthood, the American Civil Liberties Union (ACLU) and other abortion advocacy organizations have sought court injunctions to prevent them from going into effect. Many of these legal battles have found their way to the U.S. Supreme Court.

In Planned Parenthood v. Danforth (1976), the Court upheld the right of a state to require the consent of one parent when a minor sought an abortion. A judicial bypass provision was required in cases where a minor felt she would be in danger if she sought consent from a parent.

In Webster v. Reproductive Health Services (1989), the Court upheld a state’s prerogative to prohibit the use of taxpayer funds and public facilities for abortions.

In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) the Court discarded the trimester formula adopted in Roe, and ruled that states could enact laws to protect the unborn child after viability. Casey also upheld the state’s 24-hour waiting period before an abortion, as well as the state’s parental consent and informed consent laws.

In Gonzales v. Carhart (2007) the Supreme Court upheld the federal ban on a particular type of late term abortion known as partial birth abortion

Sources: Planned Parenthood v. Danforth, 428 U.S. 52 (1976).

Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

Planned Parenthood v. Casey, 505 U.S. 833 (1992).

Gonzales v. Carhart, 550 U.S. 124 (2007).

What Legal Restrictions on Abortions Have States Enacted?

Several measures have been enacted in various states to restrict abortion:

Parental Notification: Parental notification statutes require written proof that one or both parents have been notified of their daughter’s desire to have an abortion. Parental notification is required in 13 states.

Parental Consent: Parental consent statutes require written proof that, not only have one or both parents been notified, but also that one or both parents consent to their daughter’s decision. Twenty-four states have parental consent laws.

Waiting Periods: Waiting periods ranging from one to 24 hours before an abortion can be performed have been enacted in 24 states.

Informed Consent: While it is ethically and legally required for a doctor to explain a medical procedure before performing it on a patient, this is not universally required for abortion. Seventeen states have laws requiring a woman to be provided with some kind of information before an abortion is performed, ranging from offering a woman an ultrasound and thoroughly explaining the procedure to merely making pamphlets that explain the procedure available. (These laws are sometimes referred to as “Right to Know” laws.)

Partial Birth Abortion Bans: In addition to a federal law banning partial birth abortion, 14 states have laws prohibiting the practice that would remain in force if the federal law were ever repealed.

The numbers of states listed above refer to states where abortion restrictions are in force. Many other state restrictions on abortion have been permanently enjoined by the courts and are not in force. It is also important to note that while those state restrictions that are in force provide some degree of protection to the unborn and their mothers, abortion remains relatively easy to obtain throughout the United States.

For detailed information on state restrictions, both in force and enjoined, review the Guttmacher Institute’s State Policies in Brief: An Overview of Abortion Laws (see below), which is updated monthly.

Source: Guttmacher Institute. 2008, December 1. State Policies in Brief: An Overview of Abortion Laws.

See more information on Parental Notification here!

Do Any State Restrictions Actually Reduce Abortion?

In a 2008 analysis conducted for the Family Research Council, University of Alabama Professor Michael New found that parental involvement laws have lowered abortion rates as much as 13% among minors in the states where they have been enacted. The most dramatic results were seen in laws requiring parental consent, rather than just notification, and laws requiring involvement from both parents, rather than just one.

Since these laws can be circumvented if a girl can travel to a nearby state without a parental involvement law, or if she can easily obtain a court order called judicial bypass, such laws are more effective when neighboring states have similar laws in force.

Source: New, Michael, PhD. 2008, September 24. The Effect of Parental Involvement Laws on the Incidence of Abortion Among Minors. Family Research Council.

What is the Freedom of Access to Clinic Entrances (FACE) Act?

The Freedom of Access to Clinic Entrances (FACE) Act was signed into law by President Bill Clinton in 1994. FACE specifically prohibits “the use of force or threat of force or physical obstruction” to intentionally injure, intimidate, or interfere with someone seeking to enter a facility that provides abortions. FACE also prohibits the same actions at places of religious worship, considered by some legal analysts as a bid by the law’s drafters not to appear to be singling out pro-life activity.

The penalty for a first violation of FACE is 6-12 months in prison, and a fine of $10,000 to $100,000. Subsequent convictions carry a punishment of 18-36 months in prison and a fine of $25,000 to $250,000. These penalties are far more severe than the penalties already imposed by state law for the acts prohibited by FACE.

Source: United States Department of Justice. Civil Rights Division.

Is it Legal for Pro-Lifers to Pray Outside an Abortion Facility?

Pro-lifers have the same rights as all American citizens under the First Amendment of the United States Constitution to freedom of expression on the public way. This includes the right to pray on a public sidewalk. However, one is not permitted to block the sidewalk in the process of exercising this right.

Is it Legal to Talk to Abortion-Bound Women Outside Abortion Facilities?

As long as one remains on public property and does not block the public right-of-way, it is perfectly legal to talk to a woman going into an abortion facility, to her companion, or to anyone else. It is not permissible to go onto private property in order to communicate, unless specifically invited there by someone with the authority to make the invitation.

The right to free speech is guaranteed by the First Amendment of the U.S. Constitution, and does not depend on the hearer’s permission or interest in hearing the speech.

Is it Legal to Display Graphic Abortion Pictures in Public?

The public display of graphic images of abortion is a form of freedom of expression guaranteed by the First Amendment of the United States Constitution. The fact that a message may be unwelcome to some viewers or listeners does not abrogate the right to proclaim the message.

There is considerable discussion in the pro-life movement about the appropriate use of graphic images in view of the end goal of ending all abortion. Some pro-lifers think that graphic images are always appropriate in any situation because they are real pictures of what abortion is. Other pro-lifers think that graphic images are not appropriate anyplace where children will certainly see them. Others think that these images are appropriate in certain contexts , such as in places where pro-lifers can engage in dialogue about them and share resources with post-abortive men and women. These different viewpoints are each respectfully considered here.

When Should Pro-Life Activists Call the Police?

If pro-lifers ever feel threatened or in danger due to the actions of any person, they should call the police, for two critical reasons. First, the pro-life activists should not hesitate to protect their own safety. Second, individuals who use force or threaten to use force may be guilty of assault or battery, and if they are not confronted by the police this time, they may feel emboldened to threaten or harm other pro-lifers in the future.

“Assault” is defined as placing a person in reasonable apprehension of being struck or pushed, through words or gestures. “Battery” is the willful or intentional touching of a person against that person’s will by another person, or by an object or substance put in motion by another person. An offensive touching can constitute a battery even if it does not cause injury, and could not reasonably be expected to cause injury.

It is also appropriate to call the police if it is readily apparent that a woman or girl is being coerced to go into the abortion clinic by someone accompanying her.

Larson, Aaron, Esq. 2003. Assault and Battery. Expert Law.

May Police Put a Stop to Pro-Life Activity Simple Because Someone Complains?

Peaceful, legal exercise of the freedom of speech is not dependent on the attitude or response of those who see or hear the message. Police may receive complaints from the public during a pro-life demonstration, but it is the duty of the police to protect the pro-lifers’ First Amendment rights and to explain these rights to those who are complaining.

There are, however, situations in which the police may be appropriately exercising their duty to protect the safety of the public by restricting to some extent the location of a demonstration or the way in which it is organized. When such “time, place and manner” restrictions are imposed, it must be clear that law enforcement’s duty to ensure public safety overrides the First Amendment rights of the demonstrators. Since this is a judgment call on the part of a police officer, it will necessarily be subjective.

Source: Brejcha, Thomas, Esq., and Terry Hodges. Law and Order. Pro-Life Action League. Compact disc.

If Police Attempt to Restrict Peaceful Pro-Life Activities, Should the Activists Comply?

It is advisable to comply with police directives, even when one is certain those directives violate pro-lifers’ freedom of expression guaranteed by the First Amendment of the United States Constitution. Such violations can be more effectively challenged afterwards in court. Receiving a citation or being arrested adds to the legal difficulty of obtaining justice later.

Source: Brejcha, Thomas, Esq., and Terry Hodges. Law and Order. Pro-Life Action League. Compact disc.

Is Legal Help Available for a Pro-Lifer Who Encounters Difficulties with Police?

The organizers of any pro-life demonstration should have on hand the phone number of an attorney who can offer immediate assistance if the pro-lifers encounter a problem with a police officer or department.

The Thomas More Society Pro-Life Law Center in Chicago specializes in defending the rights of pro-life activists. They can be reached at 312-782-1680.

Source: Brejcha, Thomas Esq., and Terry Hodges. Law and Order. Pro-Life Action League. Compact disc.